3rd Circuit reverses indecent behavior conviction

Wednesday

Apr 6, 2016 at 9:09 AM

Also vacates simple kidnapping sentence of DeRidder man

A DeRidder man’s sentence for simple kidnapping has been vacated as too severe and a new sentence ordered by the 3rd Circuit Court of Appeal and his conviction for indecent behavior with a juvenile has been reversed and an order of acquittal entered.

Fahim A. Shaikh was convicted and sentenced in a case that began in April 2014 when a 13-year-old girl ran away while her mother was shopping.

The girl was found later in the day when she went to the Beauregard Parish Sheriff’s Office with the grandmother of a girlfriend.

At trial, the runway said she was walking to her friend’s house when Shaikh, 41 at the time, drove by and stopped and asked her if she needed a ride She said yes and asked to be taken to the friend’s house.

Since the friend was not going to be home until later in the day, the man and girl went to Dairy Queen to get food, went to his apartment, ran other errands and finally ended up at the friend’s house.

The girl alleged to police and at trial that during this time, Shaikh kissed her cheek, tickled her, slapped her buttocks and professed his love for her.

As a result he was charged with simple kidnapping and indecent behavior. and convicted at a February 2014 trial. In April, he was sentenced by Judge C. Kerry Anderson to five years, with two years suspended, on the kidnapping count, and seven years, with three suspended, on the behavior charge. They were ordered to be served concurrently, for a total of four years incarceration and five years supervised probation after release.

Shaikh appealed, saying there was insufficient evidence that he had kidnapped the girl and that the behavior sentence was too severe.

The appeals court noted that simple kidnapping is defined in part as “the intentional taking, enticing or decoying away, for an unlawful purpose, of any child not his own and under the age of fourteen years, without the consent of its parent of the person charged with its custody.”

The judges pointed out there is no dispute that the girl was under age 14 and that Shaikh did not have the mother’s consent.The issue, they noted, is whether Shaikh did what he did “for an unlawful purpose.”

Testimony indicated that each time the defendant made an advance the girl told him to stop and he did, and that he took her to hr friend’s house when she eventually requested him to do so.

“Her testimony reveals that Shaikh never threatened her, never made her go to the apartment or return with him after they went to Wal-Mart, and that she never made an effort to escape. She also testified that Shaikh never tried to touch her breast or private area, make out with her, or have her perform any kind of acts on him.” the court noted.

However, the jury believe the girls version, not the man’s. And Judge C. Kerry Anderson agreed.

“The defense has, obviously, argued that the sentence should be one of leniency in this matter, maintaining their position that Mr. Shaikh was simply trying to help this young lady.

“Well, let me dispel that situation. I do not find the evidence -- I do not find that that version of events is what happened on this occasion. I heard all of the evidence, and I do not feel that Mr. Shaikh thought that this was a traveling salesperson. I believe that more likely the situation that was described is that Mr. Shaikh saw this young girl walking down the side of the road and made an intentional decision to turn around.

“And, thankfully for this young lady, Mr. Shaikh is a very meek and mild-mannered person who only took this as far as the young victim allowed it to go. And my belief is that . . . Mr. Shaikh would have taken this as far as the young victim would have allowed it to go.

. . . .

“But I want to make the record clear that I do not believe Mr. Shaikh’s version of events that he was just trying to be a good citizen in this matter. I think, fortunately for this young lady, Mr. Shaikh was not a forceful child molester or rapist, or else we could be dealing with a much different situation. “

“We agree with the jury and trial court’s holding.” the judges said..And they disagreed with Shaikh’s contention that no unlawful purpose was proven.

“Even though the victim voluntarily agreed to enter Shaikh’s car, she had no legal authority in her capacity as a minor to consent to getting into Shaikh’s car. That consent had to come from or be denied by her legal custodian.”

On the other charge, the appeals court found no acts had been committed that qualified under the indecency statute.

The judges ruled Shaikh’s maximum sentence excessive, saying there was no evidence he had prevented the girl from leaving if she wished and no evidence he had any prior criminal history.

“Given the sentences imposed in the comparable cases, we find that the trial court abused its discretion by imposing the maximum sentence with respect to Shaikh’s simple kidnapping conviction.

“Shaikh’s sentence is, therefore, vacated and remanded to the trial court for resentencing in a manner consistent with this opinion. We further note that La.Code Crim.P. art. 881.4(A) allows this court to give direction to the trial court concerning the proper sentence.

“Considering the factors set out above, we suggest a sentence of imprisonment of two years for Shaikh’s simple kidnapping conviction.”

Chief Judge Thibodeaux disagreed with the simple kidnapping finding, saying he found that there was insufficient evidence to support the charge and conviction.

He felt “there was insufficient evidence to show that Defendant enticed, induced, or tricked the victim into getting in the car and accompanying him … for an unlawful purpose.”

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